Atlantic Coast Line Railroad v. Bunn

Hill, C. J. (After stating the foregoing facts.) Did the trial judge err in allowing the defendants to open and conclude the argument upon the filing of the amendment to the answer ? The attack made upon this ruling is that this amendment was not sufficient to entitle the defendants to the opening and conclusion of the argument, for the reason that it did not admit the plaintiffs prima facie right to recover. Objection is also made upon the ground that the amendment came too late. The latter objection is manifestly without merit, the amendment having been made before the introduction of any evidence by the plaintiff; and if the amendment contained a sufficient admission of the plaintiff’s, right to recover prima facie, there was no error in allowing to the defendants the opening and conclusion of the argument. Culver v. Wood, 138 Ga. 60 (74 S. E. 790); Brunswick &c. Railroad Co. v. Wiggins, 113 Ga. 42 (39 S. E. 551, 61 L. R. A. 513); Central of Georgia Railway Co. v. Morgan, 110 Ga. 168 (35 S. E. 645). This must be determined by a consideration of the allegations of the petition, which state the cause of action, and the admissions made by the amendment to the answer. The petition alleged, in substance, that the plaintiff railroad company delivered to the defendants, as bailees for hire, two described cars, to be nsed by the bailees in the transportation of lumber to their sawmill, over their tramway; that the defendants agreed to pay a certain per diem for the use of these ears, that the two cars in question belonged respectively to certain named railroad companies, but were in the possession of the plaintiff at the time of the bailment; that the two' ears were delivered by the plaintiff to the defendants in good order for their use on their railroad, and the defendants obligated themselves to keep the said cars in like good order, and to pay the plaintiff for all damage or injury to the cars while in their possession, use, custody, or control. The petition alleged the value of' the two ears, alleged that they were destroyed by the negligent conduct of the defendants as described in the petition; and the suit was brought to recover for the damage sustained by the wrecking of the cars while they were in the possession of the defendants. Proof of these allegations would have made out a prima facie case; for “in all cases of bailment, after proof of loss, the burden of proof is on the bailee to show proper diligence.” Civil Code, § 3469. The amendment to the answer, upon the allowance of which the [757] trial judge awarded to the defendants the right to open and conclude the argument, was in the following language: “The defendants admit that on or about the third day of August, 1907, the plaintiff delivered into their possession, custody, and control the two cars described in plaintiff’s petition, damages to which are sought to be recovered in this case, and that the damages to said cars were sustained while they were in the possession of defendants, and that the damages were the sums claimed by defendant.” An analysis of this amendment shows that three things were admitted : the bailment, the damage,, and the amount of the damages. Did the admission of these three things give the plaintiff 'a prima facie right to recover ? These admissions, aided by. the rule that the burden of proof of proper diligence is on the bailee, clearly made out the plaintiff’s right to recover; and to avoid liability it was necessary for the defendants to establish some affirmative defense ; and this they undertook to do. The defense set up was that the cars were defective, and that these defects caused the wreckage, and not the negligence,. as alleged, of the defendants. After- a careful examination of the evidence we have reached the conclusion that this defense was not established by the evidence; in other words, that the presumption of negligence against the bailees on proof of the bailment and of damage was not overcome. Defects in the cars were alleged in the most general terms. None were pointed out by the answer. It was alleged that the trestle and the track were in safe and sound condition, and that the train yras handled with due care by the servants of the defendants, and it is claimed that as these things were shown, the cars must have been defective, else the wreck could not have occurred. But the evidence is uncontroverted that these two cars were carefully inspected before they were delivered to the defendants; that they were moved by the plaintiff from Brunswick to Fairfax; that the defendants accepted them without any complaint and used them; that they were loaded by the servants of the defendants and moved over their tramway for some miles, and that no defective condition was discovered and nothing happened until the trestle was reached. The trestle gave way and the ears broke loose from the train and fell through the broken trestle. These facts would seem to indicate that the cause of the wreck was the defective and unsafe condition of the trestle. The proof of defects in the cars is more unsatisfactory [758] than the allegation on that subject made by the answer. The evidence in behalf of the defendants as to any defects in the cars is that some of the planks on the sides or the floors of the cars were unsound. How could these unsound planks-cause the trestle to give way ? The wheels and the trucks of the two cars were sound, only some of the planks were decayed; and, in passing, it may be stated that the defendants admitted that they had subsequently used some of these planks in constructing other cars. This being so, a verdict for the value of these planks was demanded. There being no reasonable causal connection between the partially decayed planks of the cars and the breaking down of the trestle, it seems that we must look for some other cause of the wreck. This cause is found in the evidence for the plaintiff that the trestle had been previously inspected and found to be in an unsafe condition; and this unsafe condition was reported by the inspectors to the defendants, and they were warned to have necessary repairs made, but the warnings were not heeded. We will not prolong the discussion on this point. We feel constrained to grant.another trial because we do not find any evidence of probative value to support the verdict. The cross-bill of exceptions contained only one assignment of error, to wit, that the court erred in allowing the plaintiff to strike from the seventh paragraph of the petition the following words: “under the said master car builders’ rules,” on the ground that the striking of these words constituted a new cause of action. This assignment of error is not meritorious. The allegation of the petition in reference to the master car builders’ rules was simply by way of inducement; the allegation does not relate to the cause of action; it was made as an explanation of the possession of the cars by the plaintiff, and the measure of diligence which these rules imposed upon carriers who had possession of the cars of other carriers. It had nothing whatever to do with the liability of the defendants, or with the contract of bailment between the plaintiff and the defendants relating to the two cars. The allegations as to these rules were wholly immaterial; and, in so far as the cause of action was concerned, were superfluous. The judgment on the cross-bill, of exceptions must, therefore, be affirmed. Judgment on niain bill of exceptions reversed,; on cross-bill of exceptions affirmed.